DHSC issues call for evidence as part of review of statutory duty of candour for health and social care providers in England

The Department of Health and Social Care has issued a call for evidence on the operation of the statutory duty of candour for health and social care providers in England, following concerns raised in the Government’s response to the Hillsborough disaster report in December 2023.

Responses will be used “to help us assess the effectiveness of the duty and shape recommendations for the review”. The call for evidence is open until 29 May.

Under the duty, health or social care service users have a right to be informed about their care and treatment.

When things go wrong, patients and service users and their families or caregivers “expect to be informed honestly about what happened, what can be done to deal with any harm caused, and to know what will be done to prevent a recurrence to someone else”, the department said.

The duty of candour was introduced In November 2014, via Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and places a direct obligation on trusts to be open and honest when something appears to have caused - or could lead to - moderate harm or worse in the future. The duty was extended to all other health and social care providers in April 2015.

It is enforced by the Care Quality Commission which can impose conditions, issue warning notices and fines, remove a provider’s registration and bring criminal prosecutions without needing to first serve a warning notice

The DHSC said the duty needed review because “we know of concerns within independent reports that the duty is not always met as intended in regulation 20”.

It went on: “Such failures to comply with the duty not only constitute a breach of a legal obligation but can lead to a breakdown in trust between patients and service users and their health or care providers.

“Patients and service users may also distance themselves from vital services they require in the future.”

The review would seek to understand to what extent the duty of candour is honoured, monitored and enforced and whether its design is appropriate.

“We are clear that limited or non-compliance with the duty cannot be justified,” it said.

The review is not considering the professional duty of candour, which places an obligation on healthcare professionals to be open and transparent with patients and service users when things go wrong.

Although the statutory duty of candour and professional duty of candour have similar aims, the professional duty is different as it is regulated by professional regulators such as the General Medical Council (GMC), Nursing and Midwifery Council (NMC) and the General Dental Council (GDC), the call for evidence said.

Mark Smulian